Can you Serve Alcohol to Your Children at Home

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The answer is NO.

Take a look at the following articles.

It turns out that there are a lot of rules that responsible adults and parents can break on vacation.  I’m not just talking about bedtime rules and no-ice-cream-before-dinner rules.  I’m talking about the criminal kind—the ones that can land you in jail or at least in a district court down east on a hot Monday morning.  I’ve written about a few of these rules before.  And this recent article in the News and Observer put everyone on notice that children under 16 cannot drive golf carts.  But I’ve recently learned a new rule: You cannot have a mixed drink on the beach.
That’s right.  You may not sit your so-far-over-21-that-I-don’t-really-remember-my-younger-self on the beach on the first unofficial day of summer and enjoy a strawberry daiquiri (unless you leave the liquor out). But don’t despair. You may drink a beer or sip some wine.
Alcoholic beverages in North Carolina are regulated under Chapter 18B of the General Statutes. Alcoholic beverages include malt beverages (such as beer), wine, liquor, and mixed beverages. The general rule is that a person may only have liquor and fortified wine (wine with more than 16 percent alcohol) in places expressly permitted by statute. See G.S. 18B-301(f)(4). The rule for beer and unfortified wine (wine with 16 percent or less alcohol) is the opposite: A person who is at least 21 years old may possess beer and wine anywhere except where it is expressly prohibited. See G.S. 18B-300.  Local government lawyers might think of this as home rule for beer and wine.
Where may one lawfully drink liquor and fortified wine? 
At home. A person who is at least 21 years old may possess any amount of liquor and fortified wine at his or her home or a temporary residence, such as a hotel room.
Up to 8 liters at other locations. A person also may possess up to 8 liters of liquor and fortified wine (combined) at:

• another person’s residence with that person’s consent;
• any other property not primarily used for commercial purposes and not open to the public at the time the alcoholic beverage is possessed, if the owner or other person in charge of the property consents; and
• a restaurant, hotel, private club, community theatre, or a veterans organization with a brown-bagging permit.

At special occasions. A person may possess any amount of fortified wine or liquor for a private party, private reception, or private special occasion, at:

• Any property not primarily used for commercial purposes, which is under the person’s exclusive control and supervision, and which is not open to the public during the event; and
• The licensed premises of a restaurant, hotel, eating establishment, private club, or convention center for which the ABC Commission has issued a special occasions permit if the person is the host of that private function and has the permission of the permittee.

Just as a person may possess fortified wine and liquor at the aforementioned places, he or she also may consume such beverages at any such location. G.S. 18B-301(d).
At a place with a permit. And, of course, the consumption of fortified wine and liquor is permissible at a location with on-premises fortified wine and mixed beverage permits. G.S. 18B-1001. An on-premises fortified wine permit may be issued to a restaurant, hotel, private club, community theatre, winery, or a convention center. A mixed beverage permit may be issued to any of these types of establishments other than a winery and also may be issued to a nonprofit or political organization.
Not on the beach.  Beaches do not constitute the sort of premises for which a permit may be issued authorizing the possession and consumption of fortified wine or mixed drinks.  While the dry sand portion of the beach – generally the area above the high tide line – may be privately owned, private persons cannot exercise the exclusive control over beaches that is required to authorize the possession of fortified wine and liquor pursuant to G.S. 18B-301(c)(2). Ocean beaches in North Carolina have “from time immemorial” been open to the public for its free use and enjoyment. G.S. 77-20.  Thus, even the owners of dry sand portions of the beach lack the ability to exclude the public from access. See Nies v. Town of Emerald Isle, __ N.C. App. ___, ___, 780 S.E.2d 187, 196 (2015) (“[P]ublic right of access to dry sand beaches in North Carolina is so firmly rooted in the custom and history of North Carolina that it has become a part of the public consciousness. Native-born North Carolinians do not generally question whether the public has the right to move freely between the wet sand and dry sand portions of our ocean beaches.”).
Beer and wine.  I mentioned earlier that a person who is at least 21 years old may possess and consume beer and unfortified wine anywhere except where it is specifically prohibited. No state law prohibits a person who is at least 21 years old from possessing and consuming beer and wine on public beaches. Indeed, the town where I vacation most often, Emerald Isle, adopted an ordinance expressly stating that such possession and consumption is lawful. Emerald Isle, like many cities and towns, does prohibit the consumption of beer, wine and other alcoholic beverages on its public streets and on other public property in the town. See 18B-300(c)(1)(authorizing cities and towns to adopt such regulations).
What’s the penalty? Possession or consumption of fortified wine or liquor on unauthorized premises is a Class 1 misdemeanor. G.S. 18B-301(f)(2), -102(b). The offense is waivable, meaning that one may plead guilty to the offense in writing and pay a fine of $25 plus $203 in court costs in lieu of appearing in court. There were nearly 600 such charges last year, 9 in Carteret County and 55 in New Hanover County.
So, if you’d rather stay on the beach and out of court this summer, forget about that daiquiri and have a Bud Light or some muscadine wine instead.

When does the State get to ask for a New Trial in DWI Cases

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We know that the Defendant is entitled to a Trial De Novo from District Court in criminal matters in North Carolina.  The question is whether the State has that same right.  Below is a review of a new case on the subject.

f you decide to read yesterday’s court of appeals opinion in State v. Miller, ___ N.C. App. ___ (May 17, 2016) do yourself a favor and skip to page 9.  Not having the benefit of this advice, I got lost on page 3. At first, I thought my printer had malfunctioned, since page 3 seemed to be saying the same thing as page 2. But there’s no problem with my printer. I can’t say the same for the procedural history in this case. Tortured is not a sufficiently negative adjective to describe its path. Fortunately, things pick up half way through the opinion and an important rule emerges:  The State may obtain a de novo hearing in superior court under G.S. 20-38.7(a) without setting forth the specific findings of fact to which it objects.
So that’s the rule. Unless the senior resident superior court judge says otherwise.  You’re going to have to read the rest of this post to make sense of that.

The first nine pages. I summarized the procedural history of State v. Miller here.  Yesterday’s opinion is the court of appeals’ response to the remand from the state supreme court.
Implied consent procedures. Miller arises from litigation in an impaired driving case.  District court judges in DWI cases don’t just rule on motions to suppress and dismiss as they do in other cases. Instead, they must enter preliminary determinations, which the State may appeal to superior court. If the State disputes the findings of fact as well as the proposed legal ruling, the superior court’s review is de novo. That type of review requires that the superior court hold a new hearing on the matter and that it rule without consideration of the proceedings below. If the State does not dispute the district court’s factual findings, the superior court does not hold a new evidentiary hearing. Instead, it simply determines whether the district court’s findings support its legal conclusions.
Who gets de novo review? A central issue in the Miller litigation is whether the State must identify the specific findings of fact to which it objects in its notice of appeal in order to obtain de novo review. Yesterday’s opinion says that the governing statutes, G.S. 20-38.7 and G.S. 15A-1432, impose no such requirement. Thus, the State’s general objection to the district court’s findings in Miller and its request for a de novo hearing were sufficient to trigger that level of review.
Unless the Senior Resident says otherwise. Yesterday’s Miller opinion notes, however, that soon after the State in that case appealed the district court’s determination to superior court, the Senior Resident Superior Court Judge for the 26^th District entered an administrative order requiring that “[w]henever the State appeals from a district court preliminary determination granting a motion to suppress or dismiss as permitted by G.S. 20-38.7, the State shall specify with particularity in its written notice of appeal those findings of fact made by the district court, or portions thereof, which the State disputes in good faith.”  The administrative order states that “a broadside exception to the district court’s findings of fact is not permitted.”  It further requires that, before the superior court hearing on the State’s appeal, counsel for the defendant and the assistant district attorney confer and “make a good faith effort” to stipulate to any facts that are not in dispute.” Any resulting stipulations must be written, signed, and filed with the clerk.
The Miller court cites G.S. 7A-41.1(c) for the proposition that the senior resident superior court judge “has the authority to enter local rules and administrative orders governing practices and procedures within that Judicial District.” G.S. 7A-41.1(c) doesn’t spell out that authority, however. Instead, it states that senior resident superior court judges must discharge all of the constitutional and statutory duties placed upon a regular resident superior court judge that do not relate to a case, controversy or judicial proceeding and which do not involve the exercise of judicial power. My former colleague, Michael Crowell, set out the duties of the senior resident superior court judge in this helpful paper.  I can’t find a duty that permits adoption of enhanced notice of appeal requirements such as the one cited in Miller. Perhaps readers better versed in this field than I may be able to identify an authorizing provision.
In any event, this portion of the latest Miller opinion is dicta as the administrative rule was adopted after Miller’s appeal and thus did not apply to the State’s notice in that case.
Maybe we’ll hear more about the administrative order in a future appellate case. But please let this be the last we hear of State v. Miller.

Thank you to the NC School of Government for the review.

Increasing Court Costs

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Great article on the impact of increasing court costs on the public's ability to pay and keep their licenses.

By Tamar R. Birckhead

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From Colonial times until the mid-1800s, it was common practice in the United States to jail people who failed or were unable to pay their debts, a practice that many, including the Supreme Court, have since recognized as a violation of people’s rights to due process and equal protection.
But while “debtors’ prisons” may sound like a relic of a bygone era, today the practice has made a disturbing return in the form of court costs and “legal financial obligations” that many people caught in the criminal justice system are unable to pay, creating insurmountable financial burdens for already-struggling families.
Across the United States, including here in North Carolina, people convicted of even minor criminal charges, such as loitering, littering and unpaid traffic tickets, face an array of fees, court costs and other forms of criminal justice debt that can lead to driver’s license suspension, bank account or wage garnishment, extended supervision until debts are paid, extra fines and interest for late payment – and ultimately incarceration.
These modern day debtors’ prisons enact devastating costs on vulnerable people who are unable to pay their fees, as well as the criminal justice system as a whole, which has had to create an extensive infrastructure to turn court and correctional officials into collection agents, diverting resources from their intended purpose.
In North Carolina, these court fees have been steadily rising – far outpacing the rate of inflation – over the past two decades. All defendants, regardless of their income level, are required to pay general court fees, which are currently $173 in district court and $198 in superior court. If these fees continue to increase at the same rate, they will exceed $500 by the year 2025. Such general fees are only a fraction of the over 100 different “legal financial obligations” or “LFOs” that can be levied on criminal defendants in North Carolina, which include a $60 appointment of counsel fee, a $250 community service fee and a $25 criminal record check fee.
People of color and those with low incomes are particularly harmed by these practices. Those who are already living at the margins of society frequently incur criminal-justice debt as a result of minor, nonviolent offenses that in many instances stem from the criminalization of poverty. There is also evidence that implicit racial bias has led to disproportionate fees being imposed on people of color by judges and court administrators.
In 1970, the U.S. Supreme Court concluded that extending a prison term for an inability to pay criminal-justice debt violated the 14th Amendment’s Equal Protection Clause. Yet jurisdictions continue to ignore or skirt the edges of these requirements and consider almost every failure to pay willful. Some courts even impose a “fines or time” alternative sentence that forces defendants to “choose” between jail and immediate payment in full.
The proliferation of court fees and the costs incurred by the state to collect them has prompted some judges, politicians and lawmakers across the U.S. to question whether the practice has gone too far.
For instance, New Jersey initiated a program in 2013 to encourage thousands of people who owe fines to appear at court sessions where judges reviewed files and ordered fee reductions. More than 4,500 people turned themselves in, and hundreds with unpaid court fees and fines were able to gain significant reductions. Other states have implemented similar programs.
In North Carolina, judges can waive many fees, and other criminal statutes allow for lowering or modifying fees prior to payment in full. This does not mean, however, that these fees are regularly waived, and the General Assembly has mandated that many fees, such as the application fee for a public defender, not be waivable.
North Carolina’s courts and lawmakers must do more to eliminate this two-tiered system of justice and bring an end to modern day debtors’ prisons.

Read more here: http://www.newsobserver.com/opinion/op-ed/article51496595.html#storylink=cpy

North Carolina DWI Grossly Aggravating Factors

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The following are Grossly Aggravating Factors for DWI sentencing.

Determining Existence of Grossly Aggravating Factors. - At the sentencing hearing, based upon the evidence presented at trial and in the hearing, the judge, or the jury in superior court, must first determine whether there are any grossly aggravating factors in the case. Whether a prior conviction exists under subdivision (1) of this subsection, or whether a conviction exists under subdivision (d)(5) of this section, shall be matters to be determined by the judge, and not the jury, in district or superior court. If the sentencing hearing is for a case remanded back to district court from superior court, the judge shall determine whether the defendant has been convicted of any offense that was not considered at the initial sentencing hearing and impose the appropriate sentence under this section. The judge must impose the Aggravated Level One punishment under subsection (f3) of this section if it is determined that three or more grossly aggravating factors apply. The judge must impose the Level One punishment under subsection (g) of this section if it is determined that the grossly aggravating factor in subdivision (4) of this subsection applies or two of the other grossly aggravating factors apply. If the judge does not find that the aggravating factor at subdivision (4) of this subsection applies, then the judge must impose the Level Two punishment under subsection (h) of this section if it is determined that only one of the other grossly aggravating factors applies. The grossly aggravating factors are:

(1)        A prior conviction for an offense involving impaired driving if:

a.         The conviction occurred within seven years before the date of the offense for which the defendant is being sentenced; or

b.         The conviction occurs after the date of the offense for which the defendant is presently being sentenced, but prior to or contemporaneously with the present sentencing; or

c.         The conviction occurred in district court; the case was appealed to superior court; the appeal has been withdrawn, or the case has been remanded back to district court; and a new sentencing hearing has not been held pursuant to G.S. 20-38.7.

Each prior conviction is a separate grossly aggravating factor.

(2)        Driving by the defendant at the time of the offense while his driver's license was revoked under G.S. 20-28, and the revocation was an impaired driving revocation under G.S. 20-28.2(a).

(3)        Serious injury to another person caused by the defendant's impaired driving at the time of the offense.

(4)        Driving by the defendant while (i) a child under the age of 18 years, (ii) a person with the mental development of a child under the age of 18 years, or (iii) a person with a physical disability preventing unaided exit from the vehicle was in the vehicle at the time of the offense.

In imposing an Aggravated Level One, a Level One, or a Level Two punishment, the judge may consider the aggravating and mitigating factors in subsections (d) and (e) in determining the appropriate sentence. If there are no grossly aggravating factors in the case, the judge must weigh all aggravating and mitigating factors and impose punishment as required by subsection (f).

  Weighing the Aggravating and Mitigating Factors. - If the judge or the jury in the sentencing hearing determines that there are no grossly aggravating factors, the judge shall weigh all aggravating and mitigating factors listed in subsections (d) and (e). If the judge determines that:

(1)        The aggravating factors substantially outweigh any mitigating factors, the judge shall note in the judgment the factors found and his finding that the defendant is subject to the Level Three punishment and impose a punishment within the limits defined in subsection (i).

(2)        There are no aggravating and mitigating factors, or that aggravating factors are substantially counterbalanced by mitigating factors, the judge shall note in the judgment any factors found and the finding that the defendant is subject to the Level Four punishment and impose a punishment within the limits defined in subsection (j).

(3)        The mitigating factors substantially outweigh any aggravating factors, the judge shall note in the judgment the factors found and his finding that the defendant is subject to the Level Five punishment and impose a punishment within the limits defined in subsection (k).

DWI Aggravating Factors

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Aggravating Factors for DWI are as follows:


Aggravating Factors to Be Weighed. - The judge, or the jury in superior court, shall determine before sentencing under subsection (f) whether any of the aggravating factors listed below apply to the defendant. The judge shall weigh the seriousness of each aggravating factor in the light of the particular circumstances of the case. The factors are:

(1)        Gross impairment of the defendant's faculties while driving or an alcohol concentration of 0.15 or more within a relevant time after the driving. For purposes of this subdivision, the results of a chemical analysis presented at trial or sentencing shall be sufficient to prove the person's alcohol concentration, shall be conclusive, and shall not be subject to modification by any party, with or without approval by the court.

(2)        Especially reckless or dangerous driving.

(3)        Negligent driving that led to a reportable accident.

(4)        Driving by the defendant while his driver's license was revoked.

(5)        Two or more prior convictions of a motor vehicle offense not involving impaired driving for which at least three points are assigned under G.S. 20-16 or for which the convicted person's license is subject to revocation, if the convictions occurred within five years of the date of the offense for which the defendant is being sentenced, or one or more prior convictions of an offense involving impaired driving that occurred more than seven years before the date of the offense for which the defendant is being sentenced.

(6)        Conviction under G.S. 20-141.5 of speeding by the defendant while fleeing or attempting to elude apprehension.

(7)        Conviction under G.S. 20-141 of speeding by the defendant by at least 30 miles per hour over the legal limit.

(8)        Passing a stopped school bus in violation of G.S. 20-217.

(9)        Any other factor that aggravates the seriousness of the offense.

Except for the factor in subdivision (5) the conduct constituting the aggravating factor shall occur during the same transaction or occurrence as the impaired driving offense.

Weighing the Aggravating and Mitigating Factors. - If the judge or the jury in the sentencing hearing determines that there are no grossly aggravating factors, the judge shall weigh all aggravating and mitigating factors listed in subsections (d) and (e). If the judge determines that:

(1)        The aggravating factors substantially outweigh any mitigating factors, the judge shall note in the judgment the factors found and his finding that the defendant is subject to the Level Three punishment and impose a punishment within the limits defined in subsection (i).

(2)        There are no aggravating and mitigating factors, or that aggravating factors are substantially counterbalanced by mitigating factors, the judge shall note in the judgment any factors found and the finding that the defendant is subject to the Level Four punishment and impose a punishment within the limits defined in subsection (j).

(3)        The mitigating factors substantially outweigh any aggravating factors, the judge shall note in the judgment the factors found and his finding that the defendant is subject to the Level Five punishment and impose a punishment within the limits defined in subsection (k).

It is not a mitigating factor that the driver of the vehicle was suffering from alcoholism, drug addiction, diminished capacity, or mental disease or defect. Evidence of these matters may be received in the sentencing hearing, however, for use by the judge in formulating terms and conditions of sentence after determining which punishment level shall be imposed.

DWI Mitigating Factors

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The question often arises, what are mitigating factors for DWI sentencing.  Below is a list from NCGS 20-179(e) of all the mitigating factors.

(e)        Mitigating Factors to Be Weighed. - The judge shall also determine before sentencing under subsection (f) whether any of the mitigating factors listed below apply to the defendant. The judge shall weigh the degree of mitigation of each factor in light of the particular circumstances of the case. The factors are:

(1)        Slight impairment of the defendant's faculties resulting solely from alcohol, and an alcohol concentration that did not exceed 0.09 at any relevant time after the driving.

(2)        Slight impairment of the defendant's faculties, resulting solely from alcohol, with no chemical analysis having been available to the defendant.

(3)        Driving at the time of the offense that was safe and lawful except for the impairment of the defendant's faculties.

(4)        A safe driving record, with the defendant's having no conviction for any motor vehicle offense for which at least four points are assigned under G.S. 20-16 or for which the person's license is subject to revocation within five years of the date of the offense for which the defendant is being sentenced.

(5)        Impairment of the defendant's faculties caused primarily by a lawfully prescribed drug for an existing medical condition, and the amount of the drug taken was within the prescribed dosage.

(6)        The defendant's voluntary submission to a mental health facility for assessment after he was charged with the impaired driving offense for which he is being sentenced, and, if recommended by the facility, his voluntary participation in the recommended treatment.

(6a)      Completion of a substance abuse assessment, compliance with its recommendations, and simultaneously maintaining 60 days of continuous abstinence from alcohol consumption, as proven by a continuous alcohol monitoring system. The continuous alcohol monitoring system shall be of a type approved by the Division of Adult Correction of the Department of Public Safety.

(7)        Any other factor that mitigates the seriousness of the offense.

Except for the factors in subdivisions (4), (6), (6a), and (7), the conduct constituting the mitigating factor shall occur during the same transaction or occurrence as the impaired driving offense.

  Weighing the Aggravating and Mitigating Factors. - If the judge or the jury in the sentencing hearing determines that there are no grossly aggravating factors, the judge shall weigh all aggravating and mitigating factors listed in subsections (d) and (e). If the judge determines that:

(1)        The aggravating factors substantially outweigh any mitigating factors, the judge shall note in the judgment the factors found and his finding that the defendant is subject to the Level Three punishment and impose a punishment within the limits defined in subsection (i).

(2)        There are no aggravating and mitigating factors, or that aggravating factors are substantially counterbalanced by mitigating factors, the judge shall note in the judgment any factors found and the finding that the defendant is subject to the Level Four punishment and impose a punishment within the limits defined in subsection (j).

(3)        The mitigating factors substantially outweigh any aggravating factors, the judge shall note in the judgment the factors found and his finding that the defendant is subject to the Level Five punishment and impose a punishment within the limits defined in subsection (k).

New laws on Sexual Offenses

Explanation of new laws by the NC School of Government.

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In the 2015 case State v. Hicks, __ N.C. App. __, 768 S.E.2d 373 (2015), after holding that the trial court committed plain error in its jury instructions, the N.C. Court of Appeals urged the General Assembly to clarify the relevant law:

This case illustrates a significant ongoing problem with the sexual offense statutes of this State: the various sexual offenses are often confused with one another, leading to defective indictments.

Given the frequency with which these errors arise, we strongly urge the General Assembly to consider reorganizing, renaming, and renumbering the various sexual offenses to make them more easily distinguishable from one another. Currently, there is no uniformity in how the various offenses are referenced, and efforts to distinguish the offenses only lead to more confusion.… We do not foresee an end to this confusion until the General Assembly amends the statutory scheme for sexual offenses. (citations omitted).

Responding to the court’s plea, the General Assembly took action. In S.L. 2015-181 it created a new Article 7B in Chapter 14 entitled “Rape and Other Sex Offenses” and recodified many of state’s sexual assault crimes. Separately, S.L. 2015-62 tweaked the elements of statutory rape and sex offense of a person under fifteen and S.L. 2015-44 increased the punishment for two sexual activity with student offenses and amended the definition of the term “school personnel.” All of the changes become effective December 1, 2015, and apply to offenses committed on or after that date. S.L. 2015-181 sec. 48; S.L. 2015-62 sec 1(d); S.L. 2015-44 sec. 5. The table below summarizes these changes and, come December 1^st hopefully will direct those involved with charging these crimes to the correct statute. Already anticipating mistakes in that regard? As I discuss in this bulletin an error in the statutory citation is not a fatal defect when the charging document otherwise properly alleges the crime committed (see my Criminal Case Compendium for more recent cases on point). As also noted in my bulletin, the statutory citation may be amended when the body of the charging instrument puts the defendant on notice of the crime charged. In any event, it’s always easier to do it right the first time. To that end here is your cheat sheet:

Offense	Old statute	New statute	Substantive changes
First-degree forcible rape	G.S. 14-27.2	G.S. 14-27.21	None
Second-degree forcible rape	G.S. 14-27.3	G.S. 14-27.22	None
Statutory rape by an adult	G.S. 14-27.2A	G.S. 14-27.23	None
First-degree statutory rape	G.S. 14-27.2	G.S. 14-27.24	None
Statutory rape of a person who is 15 or younger	G.S. 14-27.7A	G.S. 14-27.25	1. Adds requirement that defendant be at least 12 years old 2. Statute now applies whenever victim is 15 years old or younger (used to apply to victim who was 13, 14, or 15 years old) 3. For version that applies when a defendant is >4 but <6 years older than the victim, adds the language: “[u]nless the conduct is covered under some other provision of law providing greater punishment”
First-degree forcible sexual offense	G.S. 14-27.4	G.S. 14-27.26	None
Second-degree forcible sexual offense	G.S. 14-27.5	G.S. 14-27.27	None
Statutory sex offense by an adult	G.S. 14-27.4A	G.S. 14-27.28	None
First-degree statutory sexual offense	G.S. 14-27.4	G.S. 14-27.29	None
Statutory sex offense of a person who is 15 or younger	G.S. 14-27.7A	G.S. 14-27.30	1. Adds requirement that defendant be at least 12 years old 2. Statute now applies whenever victim is 15 years old or younger (statute used to apply to victim who was 13, 14, or 15 years old) 3. For version that applies when a defendant is >4 but <6 years older than the victim, adds the language: “[u]nless the conduct is covered under some other provision of law providing greater punishment”
Sexual activity by a substitute parent	G.S. 14-27.7(a)	G.S. 14-27.31(a)	None
Sexual activity by a custodian	G.S. 14-27.7(a)	G.S. 14-27.31(b)	None
Sexual activity with a student	G.S. 14-27.7(b)	G.S. 14-27.32	1. Definition of “school personnel” amended to include those employed by a nonpublic, charter, or regional school. 2. Sexual activity with a student by person <4 years older than the student raised from Class A1 misd. to Class I felony.
Indecent Liberties with a student	G.S. 14-202.4	No change	1. Definition of “school personnel” amended to include those employed by a nonpublic, charter, or regional school. 2. Indecent liberties with a student by person <4 years older than the student raised from Class A1 misd. to class I felony.
Sexual battery	G.S. 14-27.5A	G.S. 14-27.33	None

New law on Possession of Marijuana

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Law may now require officers to arrest rather than merely cite for possession of less and 1/2 ounce of marijuana.  Below is a great article by the NC School of Law.
This session, the General Assembly made some changes to the statute governing the fingerprinting of criminal defendants. Inside and outside the School of Government, people are divided about whether the statute now requires officers to arrest, rather than cite, individuals for misdemeanor marijuana possession offenses.
Before this session. Until this legislative session, G.S. 15A-502(a) generally permitted criminal defendants to be fingerprinted only if (a) they were arrested, rather than cited or summoned to court, (b) they were “[c]omitted to imprisonment upon conviction,” or (c) they were convicted of a felony. Meanwhile, G.S. 15A-502(a1) generally required “the arresting law enforcement agency” to fingerprint “a person charged with the commission of a felony.”
The combined effect of these two provisions was that all felony defendants were arrested, not summoned. (Citations can’t be used to charge felonies because G.S. 15A-302 limits their use to misdemeanors and infractions.) Although by statute summonses may be used for any “crime or infraction,” and although the official commentary to the statute says that they are appropriate for use with felonies, see G.S. 15A-303 & official commentary, many people reasoned (1) that all felony defendants must be fingerprinted, and (2) they may be fingerprinted only if arrested, so (3) they must be arrested rather than summoned. Thus, the AOC summons form, AOC-CR-113, is captioned “Misdemeanor Criminal Summons,” suggesting that felonies should not be charged by summons. Not everyone agrees with this reasoning, but my impression is that it is the prevailing view.
By contrast, fingerprinting was not mandated for misdemeanor defendants, so they could be charged by summons – or by citation – if circumstances made that more appropriate than an arrest.
2015 gun bill requires fingerprinting for certain misdemeanor defendants. This session, the General Assembly passed S.L. 2015-195, a bill focused on amending the firearms laws. It altered G.S. 15A-502 to make it “the duty of the arresting law enforcement agency to cause a person charged with the commission of [specified] misdemeanors to be fingerprinted, for the purposes of reporting these offenses to the National Criminal Instant Background Check System (NICS), and to forward those fingerprints to the State Bureau of Investigation.” (S.L. 2015-267 removed from the statute the phrase “for the purposes of reporting these offenses to the National Criminal Instant Background Check System (NICS),” but it left the directive of the statute unchanged. Both laws are already in effect.)
Relatively few misdemeanors are covered by the new law, including driving while impaired and certain domestic-violence-related offenses. It appears that the misdemeanors were selected because they relate in some way to conditions that would prevent a person from lawfully owning a gun. For example, individuals who are subject to a DVPO or who have been convicted of a domestic violence misdemeanor are prohibited from possessing a firearm under federal law. See generally 18 U.S.C. § 922(g). And, as Shea discussed here, in some instances a DWI conviction may result in a person being ineligible to possess a firearm.
Misdemeanor drug possession included in new law. Most of the covered misdemeanors normally resulted in arrests anyhow, so fingerprinting was at least a possibility. But there’s one very significant exception: the law applies to misdemeanor possession of a controlled substance under G.S. 90-95(a)(3). I speculate that this was included in the bill because 18 U.S.C. § 922(g)(3) makes it a crime for any person “who is an unlawful user of or addicted to any controlled substance” to possess a firearm.
A misdemeanor possession charge normally involves possessing 1.5 ounces of marijuana or less, most often half an ounce or less. Many officers prefer to issue citations for these offenses rather than making arrests. These offenses are incredibly common, with over 35,000 charges last year for possession half an ounce of marijuana or less and over 2,000 for possession of more than half an ounce but not more than 1.5 ounces.
Does the new law require arrests? A number of officers and others have asked about the meaning of the new provision. The wording of the provision is very similar to the wording of the felony fingerprinting provision, which has generally been read to require arrests and to preclude summonses for felony defendants. If the new provision is read the same way, officers would need to arrest and fingerprint rather than cite or summon every person to be charged with misdemeanor possession of a controlled substance. That means more work for officers, more work for magistrates, more work for clerks, and arrest records for more defendants. Or else it means more officers forgoing charges to avoid the burdens associated with an arrest. Of course, if that’s the law, it’s the law, and perhaps there are benefits to including more misdemeanants’ fingerprints in the system. At least one of my colleagues supports this reading.
That’s not the only possible reading of the provision, however. One could read it so say that if a person charged with a misdemeanor drug possession offense is arrested, he or she must be fingerprinted, but not to require an arrest. In support of this view, one could argue that the legislature knows how to enact clear mandatory arrest provisions, see G.S. 50B-4.1(b) (officers “shall arrest” when they develop probable cause to believe a person has violated a DVPO), yet it didn’t do so here. My impression is that many law enforcement agencies are adopting this interpretation, and it’s hard to see how such an interpretation would come before a court for review. Does that open the door to reconsidering the practice regarding felonies? At least one of my colleagues thinks that it should.
I have also heard the suggestion that an officer may still cite or seek a summons for a person charged with a misdemeanor drug possession offense, but that the officer must fingerprint the person anyhow. I don’t think that interpretation works, as it would render the reference to the “arresting law enforcement agency” meaningless. Also, as a practical matter, roadside fingerprinting would be a nightmare.
This strikes me as a situation in which a bill may have unintended consequences that are greater than its intended consequences. But then again, perhaps the General Assembly intended all of the bill’s consequences – with little legislative history available, it is hard to know. As always, readers’ insights and perspectives are welcome.

Fake IDs

Great article on consequences of using a fake ID.
Thank you to Shea Denning for her work.

Fake IDs were ever-present on campus when I was an undergraduate. There were several varieties: a “novelty” driver’s license obtained from a private vendor, a doctored version of the underage person’s real driver’s license, a duplicate driver’s license from an older relative, friend or acquaintance who resembled the underage person, or, the gold standard: a DMV-issued driver’s license with the underage person’s picture but an older person’s name, address, and birthdate. These days, on-line vendors hawk fake IDs, and facial recognition software makes it nearly impossible to obtain the gold standard fake ID from DMV. Otherwise, not all that much has changed in the collegiate fake-id market.
Often an underage person’s use of fraudulent identification leads to charges that are purely alcohol-related, such as the unlawful purchase or consumption of alcohol by an underage person. But other criminal charges may stem directly from the use of the fake ID.
G.S. 18B-302(e) makes it a Class 1 misdemeanor to use fraudulent identification to do any of the following:
(1) enter or attempt to enter a place where alcoholic beverages are sold or consumed,
(2) obtain or attempt to obtain alcoholic beverages, or
(3) to obtain or attempt to obtain permission to purchase alcoholic beverages.
A conviction under G.S. 18B-302(e) triggers a mandatory one-year revocation of the person’s driver’s license.
In addition, G.S. 20-30(3) makes it a Class 2 misdemeanor to display or represent as one’s own a driver’s license not issued to the person displaying it. DMV may suspend a person’s driver’s license for up to one year for conviction of this offense. G.S. 20-16(a)(6); 20-19(c).
A person who provides fraudulent identification for another person’s use also could face criminal charges. A person who allows someone else to use a driver’s license or other identification that was issued or given to that person violates G.S. 18B-302(f) if the person who is allowed to use the license or identification violates or attempts to violate the law barring the purchase, possession or consumption of alcohol by someone under 21 years of age. A violation of G.S. 18B-302(f) is a Class 1 misdemeanor that also triggers a mandatory revocation of the offender’s driver’s license for one year.
And G.S. 20-30(2) makes it a Class 2 misdemeanor to counterfeit, sell, lend to, or knowingly permit the use of a driver’s license by a person not entitled to its use. DMV may suspend a person’s license for up to one year for conviction of this offense.
Vendors face more serious consequences.The sale of a simulated driver’s license is a Class I felony.  G.S. 20-30(7).  One advocate for stricter driver’s license requirements opined earlier this year that the proliferation of counterfeit driver’s licenses from China created concerns that eclipsed underage drinking, arguing that their issuance threatened the United States’ security infrastructure.
Not identity theft. An underage person’s use of another person’s driver’s license to gain admission to a bar or club or to procure alcohol does not appear to satisfy the elements for identity theft under G.S. 14-113.20. To commit identity theft, a person must obtain, possess, or use another person’s identifying information to make financial transactions, to avoid legal consequences, or to “obtain anything of value, benefit or advantage.” While one could argue that an underage person using another’s identification obtains the “benefit” of access to certain establishments and to alcoholic beverages, such access differs markedly from the sort of financial, material, or legal benefit generally sought in connection with the improper use of another’s identity. Thus, it seems unlikely to have been the sort of benefit or advantage envisioned by the legislature when it added this language to the identity theft statute in 2002.

New Law on Probation Revokations

www.kisslinglaw.com

New Law on Probation Violations as it applies to misdemeanors.

Great article by the NC School of Government.

Come December 1, dips will be the new dunks for Structured Sentencing misdemeanants.
Since 2011, the rule for probation violations in North Carolina has been as follows. Revocation is permissible only for violations of the “commit no criminal offense” and “absconding” conditions. All other violations are considered “technical violations,” and the court may not revoke probation for them. Instead, the court may impose a period of “confinement in response to violation” (CRV) of 90 days for a felony or up to 90 days for a misdemeanor, or some other sanction aside from revocation (like a split sentence or electronic house arrest, for example). After a probationer has received two CRV periods, he or she may be revoked for any violation, including a technical violation. G.S. 15A-1344(d2). It’s a sort of “three strikes and you’re out” approach to minor violations.
The thing is, hardly anyone ever gets to the third technical-violation strike. (Actually, not that many people even get to the second one.) Something else usually happens first. Either the person gets revoked for a new criminal offense or absconding, or the probation period expires, or the first CRV is a so-called “terminal CRV”—meaning that it either uses up the defendant’s entire suspended sentence or that the judge affirmatively terminates the probation after the first CRV period is served. Especially for misdemeanants, whose suspended sentences often are not any longer than 90 days to begin with, many if not most first CRVs are terminal.
Realizing that the existing CRV model isn’t really compatible with misdemeanors, the General Assembly decided this session to abandon it—at least for misdemeanors sentenced under Structured Sentencing. Under S.L. 2015-191, signed by the governor last week, CRV is eliminated as a probation response option for Structured Sentencing misdemeanants placed on probation on or after December 1, 2015.
With CRVs eliminated, something else needed to serve as the “strike” that would put a misdemeanant technical violator on the path to revocation. Enter the “quick dip.”
Under the amended law, a judge may impose jail confinement under G.S. 15A-1343(a1)(3)—the “community and intermediate probation condition” colloquially known as a “quick dip” in the jail—in response to a probation violation other than a new crime or absconding. The quick dip, described here, is short-term jail confinement served in two- or three-day increments that may total no more than six days in any month, and that may be used in no more than three separate months of a person’s probation. A probation officer may also impose a quick dip through delegated authority under G.S. 15A-1343.2(e) (community punishment cases) and G.S. 15A-1343.2(f) (intermediate punishment), if the probationer waives his or her right to a hearing on the violation.
Once a probationer has received two periods of quick dip confinement for a technical violation, he or she may, under the revised law, be revoked for any subsequent violation. The second quick dip must have been imposed for a violation that occurred after the defendant served the first dip. With that in mind, the judge or probation officer imposing the first batch of dip confinement probably wouldn’t want to use up the full complement of available dip days, because that would leave no dip time available for imposition of a qualifying second dip after service of the first one. I don’t think that’s likely to be a problem in practice; my sense is that most dip confinement is ordered only two or three days at a time. Remember that a judge may also impose dip confinement at sentencing or in response to a new crime or absconding, but under revised G.S. 15A-1344(d2), those dips won’t qualify as technical violation strikes.
The amended law makes no changes to the existing rule for felony or DWI probationers, or for the tens of thousands of misdemeanor defendants who will already be on probation as of December 1. For them, CRV will remain as a permissible option for technical violations, with revocation allowed for any violation after receipt of two CRVs. As has become the norm, probation officers and court officials will have to take great care to use the proper law (and the proper forms) applicable to the individual probationer. I’ll work on a set of three-dimensional tables that will tell you proper law to apply given a particular offense, offense date, sentencing date, and violation date. Fear not; you’ll all have 3-D printers by the time I finish it.
The new approach is probably a better fit for short misdemeanor sentences than the existing CRV structure, but it may bring us back to square one on some of the interpretive questions we had regarding CRVs. For example:

• Can a defendant appeal quick dip confinement, either to superior court for a de novo hearing, or from superior court to the court of appeals?
• If a judge orders a quick dip at a violation hearing, may (or must?) the judge credit any pre-hearing confinement toward the dip? Or is the credit prohibited?
• What about dips imposed on a person on probation for multiples offenses; they must run concurrently with one another, G.S. 15A-1343(a1)(3), but does the defendant get jail credit against all of the cases if he or she later gets revoked?
• Does the rule apply equally to unsupervised cases, where there is no probation officer to impose dips through delegated authority? (I have never read the reference to defendants “under supervision” in G.S. 15A-1344(d2) to limit the rules on revocation eligibility to supervised probationers. G.S. 15A-1344(a) sets out the baseline rule for revocation eligibility, and it is not limited to supervised offenders, and G.S. 15A-1341(b) says that, in general, unsupervised probationers are subject to the same rules as the supervised ones.)

I also wonder whether the increased emphasis on quick dips may give rise to a constitutional challenge (background here). I’m not aware of any pending litigation along those lines—even though probation officers have imposed over 5,000 quick dips statewide since 2011. But that could change once dips mean more. It’s also possible, of course, that probationers will become less likely to consent to an officer-imposed quick dip, knowing that it puts them on the path to revocation. My understanding is that under current law, very few probationers refuse to consent to a probation officer’s quick dip proposal.
Finally, even though the duration of the quick dip makes it a better intervention than CRV in short misdemeanor cases, a defendant is still entitled to a full-blown violation hearing before the court may order one. So we’re still left with a world where it could take three hearings (dip, dip, then revoke) to fully activate a relatively short sentence. With that in mind, I wouldn’t be surprised to see an increase in “terminal splits” or “terminal contempt” ordered in response to defendant’ first technical violations. Court (and counsel) time—not suspended sentence length—may be the true limiting factor.